Consent
·
Function: to uphold and enhance
the patient‟s autonomy – the right to think and act without coercion
· Code of HDS right 7: to make an
informed choice and give informed consent except where any enactment of common
law provides otherwise… (The code treats adults and children the same)
·
Consent is a process of
communication, openly gives information, honestly answers questions, in a
setting and manner that the patient can understand
·
Autonomy:
o Requires the ability to form beliefs, make decisions, form preferences,
form practical intent
o Problems when these are completely or incompletely lacking, fluctuating, manifestly irrational
o = A set of practical skills through which we make and act on decisions which accord with our own values
o We should respect autonomy as this gives superior outcomes and because
of underlying assumption that individual is best judge of his/her own good
·
Requirements for consent:
o Competence (ie autonomy)
o Provision of information
o Information is understood
o Voluntary. Patient has control over the decision – ie lack of negative
consequences, accustomed to obeying authority figures, feeling threatening by
someone
·
Individual must be able to
understand that:
o They have a choice (no coercion)
o Why they are being offered treatment
o What is involved
o Probably benefits, risks, side effects, failure rates
o Alternatives
· When you can‟t get consent:
o Children lack legal capability to consent until 16. If patient under 16
doesn‟t want parents to know can‟t tell them.
o If the are mentally or physically incapacitated
o Can NOT use implied consent if the patient is incompetent – need consent
of guardian, etc. But must treat in an emergency
·
Presumption of competence:
assumed competent until demonstrated otherwise (including children)
o Varies with complexity of condition and treatment
o Ask the patient! Do they understand why treatment is needed, what is
involved, benefits, risks and alternatives
o Issue is not whether to get consent – but how
o Inconsistency about when they are autonomous:
§ Guardianship Act: 16
§ Common Law (Gillick case 1985) and H&D code: Capacity to make
decision
o Exceptions to age limits and parental consent
§ Emergencies
§ Blood transfusion when life saving (if under 20 years)
§ Compulsory treatment (eg Mental health Act, Tb)
§ Blood alcohol
§ Abortion and contraception (CSA Act 1977): at any age, and no
requirement to inform parents
§ Child Abuse examination (CYFS Act 1989)
§ When Guardianship invested in the Court or DG of Social Welfare
§ Good practice to involve the parents wherever possible
o Consent and the UN Convention on the Rights of the Child
§ The best interests of the child are paramount (article 3)
§ Have the right to express their views and have them taken into account
(article 12)
§ Privacy and Confidentiality (article 16)
§ Accessibility of information (article 17)
o Conflict over consent:
§ Maori issues: greater expression of autonomy collectively, and
collective responsibility for Tamariki. Involve whanau
§ If a child says no – it‟s usually because they are frightened. Take a child‟s views seriously.
§ Reduce fear by ensuring understanding. But best interests may be in conflict with their wishes
§ If parents say no, consider reasonable alternatives and legal (last option). CYPS Act, sections 14 & 67 – child in need of protection. Guardianship Act 1968 may place child under guardianship of the court
§ Allow time to work it through, plan ahead
§ Avoid rushing important decisions
§ Give information, check it is understood, opportunity to ask questions
§ Enlist supports, Maori/PI staff, translator, etc
o Dates from Nuremberg trials ® Declaration of Helsinki
o Underlying principle: Concern for patient must be greater than the
concern for science
o Patient has same right to informed consent as with treatment
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